THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 - 2008
Decision DEC-S2010-015
PARTIES
Mr. John & Mrs. Roseanne O'Brien (and on behalf of their four children)
(represented by Mr. Garrett O'Neill, Solicitor,
The Equality Authority)
and
Kerry County Council
(represented by Mr. John J. Daly, County Solicitor,
Kerry County Council)
File Reference: ES/2007/0160
Date of Issue: 8th March, 2010
Keywords
Equal Status Acts, 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) - Race Ground, Section 3(2)(h) - Traveller community Ground, Section 3(2)(i) - Reasonable Accommodation, Section 4(1) - Harassment, Section 11 - Discrimination by a Housing Authority, Section 6(1)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 3rd December, 2007 under the Equal Status Acts, 2000 to 2004. On 11th December, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Act 2000, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2004 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 14th January, 2010.
1. Dispute
1.1 The complainants, Mr. John and Mrs. Roseanne O'Brien, claim that both they and their four children were discriminated against by the respondent on the grounds of their race and membership of the Traveller community in terms of sections 3(1), 3(2)(h) and 3(2)(i) in not being provided with a service which is generally available to the public contrary to Section 6(1) of the Equal Status Acts. The complainants claim that they were subjected to harassment by the respondent within the meaning of section 11 of the Equal Status Acts. The complainants also claim that the respondent discriminated against two of their children on the grounds of their disability in terms of sections 3(1) and 3(2)(g) and contrary to section 4 of the Equal Status Acts by failing to provide them with reasonable accommodation.
2. Summary of the Complainants Case
2.1 The complainants, Mr. John and Mrs. Roseanne O'Brien and their four children, are members of the Traveller community and two of the complainants' sons have being diagnosed with autism. The complainants returned to Ireland in May, 2007 after having resided in England for a number of years and they presented themselves to the respondent as homeless on 11 May, 2007. The complainants were interviewed on this date at the Homeless Information Centre in Tralee, Co. Kerry by Mr. A, Traveller Liaison Officer (acting on behalf of Kerry County Council) and Ms. B, Community Welfare Officer (acting on behalf of the Health Service Executive South). The complainants informed the respondent that they were moving back to Ireland because the area in which they had resided in England was too violent within which to raise their children. The complainants were placed in emergency accommodation in a hostel in Listowel pending further investigation of their case by the respondent. The complainants stated that they requested to be placed in temporary accommodation in Tralee while their application was being investigated. However, Mr. A refused to accede to this request and sent them to the hostel in Listowel. The complainants stated that this hostel was totally unsuitable for a family with young children (especially for children with disabilities) and they claimed that food which they purchased was constantly being stolen from the premises.
2.2 The complainants met with Mr. A, Traveller Liaison Officer, on a number of different occasions in relation to their application for a declaration of homelessness. They claimed that Mr. A was very unhelpful and constantly "blocked" their application at every possible opportunity. The complainants required this declaration from the respondent in order to enable them to claim rent supplement and other social welfare allowances within the State. The complainants stated that Mr. A refused to provide them with a declaration of homelessness on the basis that they were still the tenants of a property in England. Mr. O'Brien accepts that he held the tenancy of a property in England at that juncture; however, he stated that he had informed the appropriate housing authorities in England that he was surrendering the tenancy of the property in that jurisdiction. When Mr. O'Brien presented confirmation to the respondent from the housing authority in England that the process of surrendering their tenancy had commenced, he claims that Mr. A still refused to grant the declaration of homelessness on the basis that the tenancy of the house in England would not technically end until a further period of four weeks had elapsed i.e. until the middle of June, 2007. The complainants stated that Mr. A told them that they should return to England as they weren't homeless and he went as far as offering financial assistance with the cost of returning to England.
2.3 The complainants met with Mr. A on 25th May, 2007 and were accompanied by Ms. C, the Visiting Teacher for Travellers for the area. They were again refused any assistance with accommodation and informed by Mr. A that they would have to leave the hostel in Listowel, at which they were temporarily resident. Mr. John O'Brien stated that he became very frustrated and angry at this meeting because of his treatment by the respondent and he accepts that he was barred from the Homeless Information Centre as a result of verbal exchanges with Mr. A and Ms. B on this date. After the complainants left the hostel in Listowel they looked for and finally managed to locate private rented accommodation in the Tralee area. However, when they approached Ms. B, Community Welfare Officer, in order to claim the rent allowance they were informed that they were not entitled to claim this allowance as Kerry County Council did not regard them as homeless. As a result the family ran into debt in raising the deposit for this house and eventually were unable to pay the rent and were forced to leave the private rented accommodation. Having left their private rented accommodation, Mrs. Roseanne O'Brien and her four children, were forced to seek shelter at the local Women's Refuge.
2.4 The complainants stated that they did not request to be dealt with by the Traveller Liaison Officer, Mr. A, and when it became apparent that Mr. A was trying to block their application they requested that their application be dealt with by a different investigating officer. However, the respondent refused to accede to this request. The complainants submitted that while they are proud of their heritage as Travellers they were not afforded any choice in how they were treated by the respondent in terms of their application for accommodation and a declaration for homelessness. It was submitted that from the outset they were classed as Travellers and treated by the respondent as Travellers and it was submitted that this had a negative impact in the manner in which they were treated by the respondent. It was submitted that the Traveller Liaison Officer, Mr. A, acted as a barrier to the complainants in the present case in terms of their efforts to obtain emergency accommodation and a declaration of homelessness. The complainants claimed that Mr. A did not have any authority in his capacity as a Traveller Liaison Officer to make a decision as to whether or not a person or family should be deemed homeless and it was submitted that any such decisions were strictly within the remit of the Homeless Information Co-ordinator. The complainants stated that they were subjected to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which the respondent dealt with their application to be declared homeless with the result that they were unable to claim rent supplement or other social welfare benefits. The complainants also submitted that the respondent failed to have any regard to the special needs of their two autistic children and that it failed to provide them with reasonable accommodation in accordance with its obligations under section 4 of the Equal Status Acts.
2.5 The complainants also claimed that the manner in which they were treated by Mr. A amounts to harassment within the meaning of section 11 of the Acts. The complainant, Mrs. Roseanne O'Brien, also claims that she was subjected to harassment by Mr. A when he came to visit her while she was staying at the Women's Refuge. She stated that she did not request a meeting with Mr. A on this occasion and she claims he threatened that he had the authority to decide whether or not she could remain at the Women's Refuge during the course of this meeting.
3. Summary of the Respondent's Case
3.1 The respondent stated that it does not have any jurisdiction in relation to the payment of supplementary welfare allowance or rent supplements and that any decision in relation to the granting of these payments rests with the Community Welfare Officer (who acts on behalf of the Health Service Executive). The respondent stated that the role of the local authority is to determine whether a person has a housing need (and is therefore homeless) and it confirmed that a person must be declared as having a housing need or homeless in order to qualify for payments such as rent supplement. The respondent stated that the normal procedure in such cases is that staff in the Homeless Information Centre would make enquiries regarding the person or family who are seeking a declaration of homelessness including enquiries with the Dept. of Social Welfare, the Gardai, other housing authorities within the State (and other jurisdictions, if necessary). The respondent stated that it followed it's normal procedures in the present case and it confirmed that these procedures are routinely applied to any person or family who presents as homeless regardless of whether or not they are members of the Traveller community.
3.2 The respondent confirmed that the complainants, Mr. John and Mrs. Roseanne O'Brien, presented as homeless to the Homeless Information Centre in Tralee on 11th May, 2007 and were accommodated in a hostel in Listowel pending further investigation into the claim that they were homeless. During the course of it's investigations of the complainants' case the respondent received information from the relevant housing authorities in England that they held the tenancy of a property in that jurisdiction and also that they had been granted a transfer to another property on foot of their request for a larger house. The information obtained by the respondent from the housing authorities in England confirmed that the complainants could in fact have resided at either of these properties at that juncture. The respondent stated that it also received confirmation from the relevant authorities that the complainants were at that juncture in receipt of social welfare benefits and child benefits in England. The respondent stated that any person who owns a house or who has a right to reside in a house or who has an interest in or a tenancy of a house within it's local authority jurisdiction (ar any other jurisdiction) cannot be deemed to have a housing need and therefore cannot be declared homeless. The respondent stated that as there was no impediment to the complainants returning to their rented property in England they could not be deemed homeless and as a result were advised that they could no longer be accommodated by the Homeless Information Centre.
3.3 The respondent stated that it was not provided with any information or evidence (from either the relevant housing authority or the police in England) to substantiate the complainants' contention that they could not return to their house in England on the basis that they were fleeing a violent situation in that jurisdiction. The respondent accepts that it received confirmation from the housing authorities in England on 28 May, 2007 that the complainants had commenced the process of surrendering the tenancy of their house in England. However, it stated that there was still a further period of 4 weeks before the tenancy lapsed and it therefore could not declare the complainants homeless during this period. The complainants were requested by the respondent to vacate the hostel in which they had been temporarily accommodated on the basis that the investigation into their case had confirmed that they were not homeless. The respondent stated that it offered financial assistance to the complainants to facilitate their return to England as was the normal practice in a case where a person or family's claim of homelessness is not upheld. The respondent also confirmed that Mr. A routinely made decisions, in consultation with the Homeless Information Co-ordinator, as to whether or not a person should be deemed homeless and it stated that Mr. A was not acting ultra vires when he made the decision that the complainants were not homeless in the present case.
3.4 The respondent stated that the complainants were neither treated in a rude nor disrespectful manner and were afforded the same respect and consideration given to any other person presenting at the Homeless Information Centre. The respondent stated that Mr. John O'Brien frequently used foul and abusive language in his dealings with the Traveller Liaison Officer, Mr. A, and other members of staff in relation to this matter and it confirmed that Mr. O'Brien was ultimately barred from the Homeless Information Centre as a result of his threatening and abusive behaviour. The respondent stated that it has long been the policy of local authorities to have a designated person i.e. the Traveller Liaison Officer to deal with members of the Traveller community. The reason behind this policy is that the Traveller Liaison Officer will have a smaller number of persons to deal with and therefore be in a position to afford more time to each individual case. The respondent stated that the complainants did not indicate that they did not wish to deal with the Traveller Liaison Officer in relation to their case and it stated that they would have been allowed to deal with another investigation officer if such a request had been made.
3.5 The respondent also denied that the complainants had been subjected to harassment within the meaning of section 11 of the Equal Status Acts. The Traveller Liaison Officer, Mr. A, accepted that he visited Mrs. Roseanne O'Brien at the Women's Refuge on the date in question, however, he denies that he made any threats or engaged in any form of harassment towards her during the course of this visit. Mr. A stated that he frequently visited the local Women's Refuge as part of his role as a Traveller Liaison Officer and he confirmed that the purpose of his visit to Mrs. O'Brien on this occasion was to discuss her housing/homeless application. The respondent also denies that it failed to provide reasonable accommodation to the complainant's children within the meaning of section 4 of the Equal Status Acts. The respondent accepts that it was aware that two of the complainants children had a disability; however, it stated that the issue of their disability was not a factor that could be taken into consideration in determining whether or not that family were deemed homeless.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainants. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainants to establish, in the first instance, facts upon which they can rely in asserting that prohibited conduct has occurred in relation to them. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
Scope of the investigation in the present case
4.2 For clarification purposes, I wish to note that the Homeless Information Centre in Tralee is operated under the control of two separate entities, namely the respondent to the present proceedings i.e. Kerry County Council and the Health Service Executive South. I therefore wish to clarify at this stage of my deliberations that I do not have any jurisdiction in the present case to investigate the allegations of discrimination that have been made by the complainants against Ms. B, Community Welfare Officer, in terms of the manner in which she dealt with their application for supplementary welfare allowance or rent supplement. The allegations which have been made against Ms. B are outside of the scope of the present investigation on the basis that she was employed by and entity (i.e. the Health Service Executive South) which has not been named as a respondent to these proceedings. Therefore, the scope of my investigation in the present case is confined exclusively to the allegations of discrimination against Kerry County Council in terms of the manner in which it dealt with their application for a declaration of homelessness.
4.3 In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. At the outset of the hearing of these complaints, the complainants' representative withdrew the complaint of discrimination on the race ground. I will now proceed to examine the complaints on each of the other two grounds claimed i.e. the Membership of the Traveller community and Disability grounds.
Traveller community ground
4.4 It was not in dispute between the parties that the complainants, Mr. John and Mrs. Roseanne O'Brien and their four children are members of the Traveller community. The complainants have claimed that the respondent has subjected them to discrimination on the grounds of their membership of the Traveller community in terms of the manner in which it dealt with their application for a declaration of homelessness following their return to Ireland in May, 2007. The complainants claim that they were unable to claim supplementary welfare allowance entitlements in respect of rent or other benefits because the respondent refused to provide them with this declaration. The respondent has denied that the complainants were subjected to discrimination on the grounds of their membership of the Traveller community and it submitted that their application for a declaration of homelessness was dealt with and processed in accordance with it's normal procedures and that the decision not to grant the application was in no way attributable to their Traveller status. Therefore, the question that I must decide in relation to this issue is whether the complainants were treated less favourably than another person or family would have been, in similar circumstances, on the grounds of their membership of the Traveller community in terms of the manner in which the respondent dealt with their application for a declaration of homelessness.
4.5 In considering this issue, I note that the complainants presented as homeless at the Homeless Information Centre on 11th May, 2007 and that they were interviewed on this date by the Traveller Liaison Officer, Mr. A. It was accepted by both parties that the complainants were placed in emergency temporary accommodation at this juncture pending an investigation of their case and that they were allowed to remain in this accommodation until the respondent had made a decision in relation to their application. It is clear that the respondent is obliged to carry out an investigation into the circumstances of the person or family that is seeking a declaration of homelessness before any decision can be made in relation to the application. Based on the evidence adduced, I am satisfied that the respondent followed this procedure in the present case and that it carried out an investigation into the circumstances of the complainants claim that they were homeless.
4.6 The respondent adduced evidence that any person who owns a house or who has a right to reside in a house or who has an interest in or a tenancy of a house within it's local authority jurisdiction (or any other jurisdiction) cannot be deemed to have a housing need and therefore, cannot be declared homeless in accordance with the definition of a "homeless person" as provided for in section 2 of the Housing Act, 1988. It was not in dispute between the parties that during the course of this investigation it came to the attention of the respondent that the complainants were at that juncture the tenants of a local authority house in England. Neither was it disputed that the complainants had commenced the process of surrendering their tenancy of this property and that this information was brought to the attention of the respondent during the course of it's investigation into their case. However, it is also clear from the evidence adduced that the complainants' tenancy of this property would not officially terminate for a period of four weeks from the date they had informed the housing authority in England of their intention to surrender the property.
4.7 I am satisfied that the complainants had not completed the surrender of this property at the time the respondent made the decision to refuse their application for a declaration of homelessness in the present case. Having regard to the evidence adduced, I am satisfied the reason that the respondent decided not to grant the complainants application for a declaration of homelessness was on the basis that they did not meet the relevant criteria in order to qualify for such a declaration at that particular juncture. Indeed, I have noted that the Traveller Liaison Officer, Mr. A, did in fact subsequently provide Mrs. Roseanne O'Brien with a declaration on 29 August, 2007 to confirm that she was homeless under the provisions of the Housing Act, 1988 (at which stage the tenancy of the property in England had been surrendered). I am also satisfied that the respondent followed its normal procedures in terms of the manner in which it dealt with the complainant's application and the investigation that was carried out in relation to their case. I have not been presented with any evidence from which I could reasonably conclude that the manner in which the complainants' application was dealt with or the reason that it was ultimately refused was in any way attributable or influenced by the fact that they were members of the Traveller community.
4.8 The complainants have also claimed that that they were treated less favourably by the respondent on the basis that their application was dealt with by the Traveller Liaison Officer and on the basis that they were not afforded any choice in how they would be dealt with in relation their application. They also submitted that Mr. A did not have the relevant authority, in his capacity as a Traveller Liaison Officer, to make the decision as to whether or not a person or family should be deemed homeless. In considering this issue, I note the respondent's evidence that it is the established policy of Local Authorities within the State to have a designated person (i.e. the Traveller Liaison Officer) to deal with members of the Traveller community in relation to applications for local authority housing. I am of the view that this is a positive action measure that is designed to assist rather than hinder members of the Traveller community in terms of their access to local authority housing. I have not been presented with any evidence from which I could reasonably conclude that the Traveller Liaison Officer, Mr. A, acted in a discriminatory manner towards the complainants on the grounds of their membership of the Traveller community, in the circumstances of the present case, in terms of the way he dealt with their application for a declaration of homelessness. I accept the respondent's evidence that the complainants could have made a request to deal with one of the other three investigating officers that it employs in relation to their application. Furthermore, I am satisfied that the complainants would have been facilitated in this regard if they had made such a request during the course of their interaction with the respondent in relation to this matter.
4.9 I am also satisfied from the evidence adduced that it was the established practice within the respondent organisation at that juncture whereby Mr. A would make decisions as to whether or not a person or family should be deemed homeless following consultation on the particular case with the Homeless Co-ordinator. I am satisfied that the manner in which the decision which was taken by Mr. A in the present case was consistent with these established practices and I have not been presented with any evidence from which I could reasonably conclude that the complainants were subjected to less favourable treatment on the grounds of their Traveller status in terms of the manner in which this decision was effected in the present case. Accordingly, I find that the complainants have failed to establish a prima facie case of discrimination on the Traveller community ground.
Disability Ground
4.10 In the present case, it was not disputed that two of Mr. and Mrs. O'Briens' sons have been diagnosed as autistic and I am therefore satisfied that they are persons with a disability within the meaning of Section 2(1) of the Equal Status Acts. The complainants have claimed that they were subjected to discrimination on the disability ground on the basis that the respondent failed to take their sons' disabilities into consideration in terms of the manner in which it dealt with their application for a declaration of homelessness. In considering this issue, I am satisfied that the respondent did not refuse the complainants access to the service in question i.e. the facility of making an application for a declaration of homelessness and having this application considered in the normal manner. Furthermore, I am satisfied that the complainants were not treated less favourably than another person or family would have been in similar circumstances on the grounds of their sons' disabilities. Based on the evidence adduced, I find that the reason for the refusal to grant the complainants' application for a declaration of homelessness was not in any way attributable to their sons' disabilities but rather was on the basis that they failed to meet the relevant criteria in order to qualify for such a declaration. I therefore find that the respondent did not directly discriminate against the complainants on the disability ground in the present case.
Reasonable Accommodation
4.11 In the case of disability in considering whether discrimination occurred, consideration must also be made to the issue of the provision of reasonable accommodation to a disabled person in accordance with section 4 of the Equal Status Acts. In considering this issue, I am satisfied that the complainants and their children were facilitated by the respondent in terms of making an application for a declaration of homelessness when they presented at the Homeless Information Centre. I am also satisfied that the respondent provided the complainants with access to emergency temporary accommodation when they presented as homeless and that they were facilitated in this accommodation until the investigation into their application had been completed. I note the complainants stated that they requested to be accommodated in Tralee rather than Listowel and their claim that the hostel in which they were afforded emergency temporary accommodation was not suitable for a family with children.
4.12 Having regard to the evidence adduced, I am satisfied that the respondent accommodated the complainants in the only emergency accommodation that was available to it at the time they presented as homeless at the Homeless Information Centre in May, 2007. I accept the respondent's evidence that the complainants were afforded access to a family room and that the hostel in which they were placed was regularly used to accommodate families with children in emergency situations. I am satisfied that the measures which the respondent put in place in the circumstances of the present case amounted to the provision of reasonable accommodation within the meaning of section 4 of the Acts. Having regard to the totality of the evidence adduced, I therefore find that the respondent did not fail in its obligations in accordance with the provisions of Section 4 of the Equal Status Acts.
Harassment
4.13 The complainants, Mr. and Mrs. Roseanne O'Brien, also claim that they were subjected to harassment by the respondent contrary to the provisions of Section 11(5) of the Equal Status Acts, 2000 to 2008. The complainants claim that they were subjected to harassment by the Traveller Liaison Officer, Mr. A, in terms of the manner in which he dealt with them on a personal level during the course of the investigation of their application for a declaration of homelessness. Mrs. Roseanne O'Brien also gave evidence regarding an incident that occurred at the Women's Refuge during the course of which she alleges that Mr. A engaged in behaviour that amounted to harassment. The Traveller Liaison Officer, Mr. A vehemently denies that he engaged in any such behaviour and he stated that he acted in a professional manner on all occasions during the course of his interaction with the complainants. Based on the evidence adduced, I have found the evidence of Mr. A to be more compelling in relation to this issue and I am satisfied that he did not engage in any behaviour during the course of his interaction with the complainants which could be construed as harassment within the meaning of section 11 of the Equal Status Acts.
4.14 In coming to this conclusion, I have taken into consideration the evidence adduced from a number of witnesses (who appeared on behalf of the respondent) who were present at the Homeless Information Centre on the occasions when Mr. A had dealt with the complainants in relation to their application. I am satisfied that the evidence of these witnesses corroborates the evidence of Mr. A that he dealt with the complainants in a professional and courteous manner in terms of the manner in which he interacted with them. I also accept the respondent's evidence that Mr. John O'Brien used foul language and engaged in abusive behaviour towards Mr. A during the course of their interaction at the Homeless Information Centre in relation to this matter. I am satisfied that this inappropriate behaviour was of such a serious nature that it resulted in Mr. O'Brien being barred from the Homeless Information Centre. Having regard to the foregoing, I find that the complainant has failed to establish a prima facie case of harassment within the meaning of Section 11(5) of the Equal Status Acts.
5. Decision
5.1 On the basis of the foregoing, I find that a prima facie case of discrimination has not been established by the complainants on the Traveller community and disability grounds in terms of sections 3(1), 3(2)(g), 3(2)(i) and 4(1) of the Equal Status Acts. I also find that the complainants have failed to establish a prima facie case of harassment within the meaning of section 11 of the Equal Status Acts. Accordingly, I find in favour of the respondent in the matter.
Enda Murphy
Equality Officer
8th March, 2010